CLA-2: OT: RR: CTF: TCM H240510 ERB
Port Director, Port of Cleveland
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130
Attn: Lisa M. Olsen, Import Specialist
RE: Application for Further Review of Protest No. 4101-12-100806; Classification of Chiguard 5530 ultraviolet light stabilizers
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 4101-12-100806, timely filed on November 5, 2012, on behalf of Maroon Inc., (Maroon or Protestant). The AFR concerns the tariff classification of one entry of Chiguard® 5530 ultraviolet light stabilizers, under the Harmonized Tariff Schedule of the United States (HTSUS). In coming to our decision, we have taken into account arguments made in Maroon’s submission, as well as supplemental information provided by Maroon via email dated April 3, 2014.
FACTS:
The subject merchandise was entered on September 24, 2011, under subheading 2933.69.60, HTSUS, which provides for, “Heterocyclic compounds with nitrogen hetero-atom(s) only: Compounds containing an unfused triazine ring (whether or not hydrogenated) in the structure: Other: Other.” U.S. Customs and Border Protection (CBP) reclassified and liquidated the subject merchandise on May 11, 2012, under subheading 3907.20.00 of the HTSUS, which provides for “Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: Other polyethers.” Maroon filed this AFR on November 5, 2012, claiming classification in subheading 3812.30.30, HTSUS, which provides for, “Prepared rubber accelerators; …; antioxidizing preparations and other compound stabilizers for rubber or plastics: Antioxidizing preparations…: Master batches…”.
According to Maroon’s submission, Chiguard® 5530 is created through a trans-esterification reaction and the resulting reaction mass consists of two benzotriazole-based compounds. The ranges are 40-55% of Constituent A, 30-45% of Constituent B, depicted by the following molecular structure:
Benzotriazole Based Constituent A: a – {3-[3-(2H-Benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl}-?-hydroxypoly(oxy-1, 2-ethanediyl))
Benzotriazole Based Constituent B: a – {3-[3-(2H-Benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl}-?-[3-[3-(2H-benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropoxy]poly(oxy-1,2-ethanediyl)2
The above chemical name follows the International Union of Pure and Applied Chemistry (IUPAC) format of naming chemicals.
Chiguard® 5530 also contains 10 – 16% of polyethylene glycol 300 (PEG). PEG is responsible for making the product water dispersible.
In addition to the IUPAC nomenclature, another method of identifying chemicals is by a unique numerical identifier assigned by the Chemical Abstracts Service (CAS). Maroon’s submission cited the following CAS numbers for the subject merchandise:
Benzotriazole Based Constituent A: 104810-48-2
Benzotriazole Based Constituent B: 104810-47-1
PEG 300: 25322-68-3
The two identification methods are both commonly used in industry and both are accepted by the HTSUS.
CBP Laboratory Report NY20130925A, dated June 21, 2013 provided the following technical information:
The material registered in the American Chemical Society CAS, CAS 104810-48-2, as “poly(oxy-1, 2-ethanediyl), alpha-[3-[3-(2H-benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl]-omega-hydroxy-“ and also known as “alpha-3-(3-(2H-benzotriazol-2-yl)-5-tert-butyl-4-hydroxyphenyl) propionyl-omega-hydroxy poly (oxyethylene)” does not match any of the chemical ingredients listed in 2013 HTSUS 3812.30.30.00. This material is also described as the “Benzotriazole Based Constituent A” of Chiguard 5530 in the technical information submitted to the laboratory. [Emphasis added] (See figure).
The material registered in CAS number 104810-47-1, as “poly(oxy-1, 2-ethanediyl), alpha-[3-[3-(2H-benzotriazol-2-yl)-5-(1,1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl]-omega-[3-[3-(2H-benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl]-4-hydroxyphenyl]-1-oxopropyl]-“ “alpha-3-(3-(2H-benzotriazole-2-yl)-5-tert-butyl-4-hydroxyphenyl propionyl-omega-3-(3-(2H-benzotriazol-2-yl)-5-tert-butyl-4-hydroxyphenyl)propionloxy poly(oxyethylene)” matches one of the chemical ingredients listed in the master batches described in 2013 HTSUS 3812.30.30.00. Specifically the master batch ingredient “alpha-[3-[3-(2H-benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl] -1-oxoppropyl-omega-[3-[3(2H-benzotriazol-2-yl)-5-(1, 1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl] poly(oxyethylene)”. This material is also known as the “Benziotriazole Based Constituent B” of Chiguard 5530 in the technical information submitted to the laboratory. [Emphasis added] (See figure)
The “Benzotriazole Based Constituent A” (CAS 104810-48-2 is a polymer. More specifically, it consists of polyethylene glycol monoesters with more than 5 repeated monomer units.
The “Benzotriazole Based Constituent B” (CAS 104810-47-1) is a polymer. More specifically, it consists of polyethylene glycol diesters with more than 5 repeated monomer units.
Both “Benziotriazole Based Constituent A” and “Benzotriazole Based Constituent B” are polyethers, a class of polymers.
Information submitted to the laboratory indicates Chiguard® 5530 contains 10-16% “polyethylene glycol” (PEG). “PEG [is] an unreacted residual raw material left from the Chiguard® 5530 manufacturing process.” PEG is also a polymer. (See figure)
The Chiguard® 5530 chemical ingredients described as “Benzotriazole Based Constituent A” and “Benzotriazole Based Constituent B” are consistent with the general chemical and physical properties of ultraviolet stabilizers commonly used in plastics.
ISSUE:
Whether the subject merchandise, Chiguard® 5530 is classified as a compound stabilizer under heading 3812, HTSUS or as a polyether in primary form under heading 3907, HTSUS?
LAW & ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on November 5, 2012, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest No. 4101-12-100806 is properly accorded to Maroon pursuant to 19 C.F.R. § 174.24(b) because the Protestant has alleged questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs Courts; namely, the tariff classification of the subject ultraviolet light stabilizers.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied
The 2011 HTSUS headings under consideration in this case are as follows:
3812 Prepared rubber accelerators; compound plasticizers for rubber or plastics, not elsewhere specified or included; antioxidizing preparations and other compound stabilizers for rubber or plastics:
3812.30 Antioxidizing preparations and other compound stabilizers for rubber or plastics:
3812.30.30 Master batches of poly[nitrilomethanetetraaryl-nitrilo[2,4,6-tris(1-methylethyl)-1,3-phenylene]]-2,6-bis(1-methylethyl)phenyl]-?[[[[2,6-bis(1-methlethyl)phenyl]amino]-methylene]amino]carbodiimide or 2, 4-diisocyanate-1,3,5-tris(1-methylethyl)-benzene homopolymer with polyethylene, polyethylene terephthalate, or thermoplastic polyurethanes; Master batches of 3-(2Hbenzotriazol-2-yl)-5-(tert-butyl)-4-hydroxybenzenepropanoic acid, C7-C9 branched or linear alkyl esters; and Master batches of A-[3-[3-(2H-benzotriazol-2-yl)-5-(1,1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl-?-[3-[3-(2H-benzotriazol-2-yl)-5-(1,1-dimethylethyl)-4-hydroxyphenyl]-1-oxo-propyl]poly(oxyethylene)
***
3907 Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms:
3907.20.00 Other polyethers
***
Note 1 to Chapter 39, which covers plastics and articles thereof states the following:
Throughout the tariff schedule the expression “plastics” means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
Note 6 to Chapter 39 states:
In headings 3901 to 3914, the expression “primary forms” applies only to the following forms:
Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; [Emphasis added]
Blocks of irregular shape, lumps, powders (including molding powders), granules, flakes and similar bulk forms.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs for heading 38.12 states the following, in relevant part:
For the purposes of this heading, the terms “compound,” “prepared” and “preparation” includes:
Deliberate mixtures and blends; and
Reaction mixtures including products from a homologous series…
***
(C) Anti-oxidising preparations and other compound stabilisers for rubber or plastics.
This category covers anti-oxidising preparations for rubber or plastics (used, for example, in rubber manufacture to prevent hardening or ageing), such as mixed alkylated diphenylamines and preparations based on N-naphthylaniline.
***
This heading excludes:
(e) Polymers of Chapter 39.
The ENs to heading 39.07 states the following, in relevant part:
This heading covers:
(2) Other polyethers. Polymers obtained from epoxides, glycols or similar materials and characterized by the presence of ether-functions in the polymer chain. They are not to be confused with the polyvinyl ethers of heading 39.05, in which the ether-functions are substituents on the polymer chain. The most important members of this group are poly(oxyethylene) (polyethylene glycol), polyoxypropylene and polyphenylene oxide (PPO) (more correctly named poly(dimethylphenylene-oxide)). These products have a variety of uses, PPO being used, like the Polyacetals, as engineering plastics, polyoxypropylene as an intermediate for polyurethane foam.
Thus, if the subject merchandise is properly classified in Chapter 39, it is excluded from classification in Chapter 38 by application of the EN 38.12(e).
In New York Ruling Letter (NY) N169383, dated July 1, 2011, CBP classified a polymer blend of two 2-hydroxyphenylbenzotriazole modified polyethylene glycols and polyethylene glycol (all polyethers) used as a UV light absorber in plastic coatings. The CAS numbers there are identical to the CAS numbers of the subject merchandise at issue in the instant ruling. Specifically, 50% CAS-104810-48-2, 38% CAS-104810-47-1, and 12% CAS-25322-68-3. CBP classified the product in subheading 3907.20.00, HTSUS. Pursuant to CBP Regulations, 19 CFR § 177.9(a) provides that ruling letters issued by the Customs Service under the provisions of this part represent the official position of the Customs Service with respect to the particular transactions or issue described therein and is binding on all Customs Service personnel in accordance with the provisions of this section until modified or revoked. In the absence of a change of practice or other modification or revocation which affects the principle of the ruling set forth in the ruling letter, that principle may be cited as authority in the disposition of transactions involving the same circumstances. Maroon argues that NY N169383 is incorrect, but nevertheless, we note that the merchandise in that ruling is substantially similar to the merchandise here.
Antioxidizing preparations are classified in heading 3812, HTSUS. The ENs to that heading list a similar preparation to the instant merchandise – mixed alkylated diphenylamines and preparations based on N-naphthylaniline (See EN 38.12(C)). However, this exemplar does not contain a polymer. It is precisely because these preparations do not contain a polymer in primary form that they can be classified in Chapter 38. The instant merchandise, however, is a polymer. Specifically, Chiguard® 5530 consists of three polymers produced as the reaction product of one reaction, in primary form. This was confirmed in CBP’s Laboratory report and analysis of the subject merchandise. “Primary Form” is addressed in Note 6(a) to Chapter 39, and includes products in liquid form. Maroon’s submission states that the PEG is an unreacted residual raw material left from the Chiguard® 5530 manufacturing process. Whether the PEG is present in the merchandise as an unintentional consequence of the chemical reaction used to create Chiguard® 5530, or for some other reason is not at issue here. It meets the terms of Note 1 to Chapter 39, and is not enumerated in the exclusions listed under Note 2 to Chapter 39. Furthermore, dispersions, such as PEG, are specifically listed in Chapter 39 Note 6(a) as included in the chapter.
Hence, the instant mixture of polymers, including a dispersion, in liquid form is specifically provided for in heading 3907, HTSUS, as “Polyacetals… in primary forms,” and thus is excluded from classification in heading 3812 by application of the exclusion in EN to 38.12(e). Whether or not that heading is a “use provisions” has no bearing on the outcome given the legal exclusion. This is consistent with previous CBP rulings. See Headquarters Ruling (HQ) 962731, dated October 22, 2001.
HOLDING:
Pursuant to GRI 1, the subject merchandise, Chiguard® 5530, is classified under heading 3907, HTSUS. It is specifically provided for under subheading, 3907.20.00, HTSUS, which provides for, “Polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms: Other polyethers.” The column one, rate of duty, is 6.5 percent ad valorem.
The Protest should be DENIED.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon
Director
Commercial and Trade Facilitation Division